SH KRESS & COMPANY v. NLRB

• Decision Date: 23 April 1963
• Docket Number: No. 18339.,18339.
• Citation: 317 F.2d 225
• Parties: S. H. KRESS & COMPANY, Appellant, v. NATIONAL LABOR RELATIONS BOARD, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

317 F.2d 225 (1963)

S. H. KRESS & COMPANY, Appellant, v. NATIONAL LABOR RELATIONS BOARD, Appellee.

No. 18339.

United States Court of Appeals Ninth Circuit.

April 23, 1963.

George O. Bahrs and Robert J. Scolnik, San Francisco, Cal., for appellant.

Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, James C. Paras and Stephen B. Goldberg, Attys., N. L. R. B., Washington, D. C., for appellee.

Before CHAMBERS, ORR and MERRILL, Circuit Judges.

MERRILL, Circuit Judge.

This case is before the Court on the petition of S. H. Kress & Co., to review and set aside an order of the National Labor Relations Board, issued July 11, 1962. The Board, in these proceedings, determined that Kress had "interfered with and restrained its employees in the exercise of rights guaranteed them by section 7 of the National Labor Relations Act,¹ and has thereby engaged in and is engaging in unfair labor practices within the meaning of section 8(a) (1) of the Act." The Board ordered Kress to cease and desist from such interference and restraint and to post notices that it would refrain from the conduct found to have constituted the interference and restraint.

Before the Board the facts were established by stipulation. There is no question of demeanor evidence. The question raised upon this petition is whether the stipulated facts may be said to establish interference and restraint by Kress of section 7 rights of its employees. In our judgment, they may not.

Kress is engaged in a nationwide merchandising business and maintains a retail store in Stockton, California. On August 2, 1961, Local 439 of the National Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America filed a petition with the Board seeking a Board-conducted election in a sixty-employee unit of the Stockton store. In accordance with established Board procedures, the Union submitted with its petition a "showing of interest" in the form of cards signed by Kress employees, authorizing Union representation. By Board practice, such showing of interest should demonstrate that 30 per cent of the employees in the affected unit favored Union representation. A representation hearing was scheduled by the Board for September 27, 1961.

Thereafter, approximately thirteen employees voluntarily advised Kress' management that they did not believe that 30 per cent of the employees had signed Union cards. On the basis of this information Kress management proceeded to interview employees respecting their having signed Union cards. With respect to these interviews the stipulation of facts states:

"Respondent, by its officers and agents, Labor Relations Representative Charles G. Barry, and Store Manager Glenn E. Greenbank, on or about September 15 and September 16, 1961, interviewed some forty-five employees in the unit petitioned for by the Union. Each of said employees was called in separately and interviewed by and in the presence of Greenbank and Barry. Said interviews were conducted in a storeroom area, so as not to interfere with the normal business of the store, wholly unconnected with the Manager\'s office. The interviews were conducted during working hours and the employees were paid for the time spent during said interviews.

"Each employee was told that the Company * * * wanted to determine whether the Union had obtained enough signatures to represent 30% of the employees in the unit in support of the Union\'s petition for election. Each employee was assured that his (or her) job was not endangered and that he (or she) could speak freely. Each employee was further advised that it was not Respondent\'s intention to inquire into their feelings for or against the Union, that they were under no obligation to discuss the subject of the Union or union organization, and that they were not required to furnish any information to the Company, if they did not wish to do so, and were free to leave at any time.

"Each employee was handed a mimeographed form as follows:

"S. H. KRESS & CO. `Stockton, California

"I have not signed a card for the union to represent me as an employee of S. H. Kress & Co.

"Dated....... Signed "Employee

"Each employee was asked to read the mimeographed form and was told that he (or she) could sign it or not, as he (or she) wished, that the matter was confidential and would not affect his (or her) job. Forty of the employees signed such forms. One employee stated she had not signed a Union card but did not want to sign the mimeographed form either, and consequently did not do so. Five employees said that they had signed Union cards and, when asked by Respondent if they were sure what it meant, replied in the negative. They were then informed that if, under those circumstances, they wished to revoke the cards, they could do so by so indicating on the mimeographed form. Four employees thereupon signed the mimeographed form, adding the following note: `I signed a card but would like to have it revoked.\' One employee signed, adding the following: `At the time I signed the card I was unaware of the purpose of the card.\' None of these `revocations\' were communicated to the Union, then or thereafter.

* * * * * *

"Apart from

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